LLOYD C. LOCKREM, INC.
OSHRC Docket No. 4553
Occupational Safety and Health Review Commission
February 24, 1976
[*1]
Before BARNAKO, Chairman; MORAN and CLEARY, Commissioners.
OPINIONBY: CLEARY
OPINION:
DECISION
CLEARY, Commissioner:
The decision of Administrative Law Judge Thomas J. Donegan rendered on October 23, 1974, is before the Commission for review pursuant to section 12(j) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [hereinafter "the Act"].
In his decision Judge Donegan ruled that the standards at 29 CFR § 1926.651(c) and 29 CFR § 1926.651(s) were not applicable to the work being performed by respondent at the time of the inspection in this case. Accordingly, the citation issued by the Secretary to respondent alleging violations of those standards was vacated together with the notification of proposed penalty. The Secretary petitioned the Commission for discretionary review, and the petition was granted.
For the reasons that follow we reverse the order of the Judge, and hold that 29 CFR § 1926.651(s) is fully applicable to the trenching activity in issue in this proceeding. n1 We therefore remand this case for further proceedings consistent with this decision.
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n1 The petition for discretionary review filed by the Secretary did not challenge the vacation of the alleged violation of § 1926.651(c). The direction for review also limited review to the question of the applicability of § 1926.651(s).
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On September 4, 1973, respondent's employees were engaged in the installation of an underground concrete sewer line in Helena, Montana. On that date, respondent's worksite was inspected by an OSHA compliance officer. As a result of this inspection a citation was issued on September 5, 1973, specifying two alleged violations of 29 CFR § 1926.651(c) n2 and one violation of 29 CFR § 1926.652(e). n3 On the same day, an "amended citation" was issued apparently for the purpose of consolidating the two alleged violations of § 1926.651(c) so as to allege a single serious violation of that standard. This amended citation repeated the alleged violation of 29 CFR § 1926.652(e).
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n2 That standard reads:
§ 1926.651 Specific Excavation Requirements.
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(c) The walls and faces of all excavations in which employees are exposed to danger from moving ground shall be guarded by a shoring system, sloping of the ground, or some other equivalent means.
n3 That standard reads:
§ 1926.652 Specific Trenching Requirements.
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(e) Additional precautions by way of shoring and bracing shall be taken to prevent slides or cave-ins when excavations or trenches are made in locations adjacent to backfilled excavations, or where excavations are subjected to vibrations from railroad or highway traffic, the operation of machinery, or any other source.
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The Secretary grouped these two alleged serious violations together for penalty purposes and proposed a penalty of $500. Respondent timely filed a notice of contest as to both the amended citation and the proposed penalty.
On October 2, 1973, the complaint was issued by the Secretary. The complaint stated that it was to constitute an amendment of the amended citation insofar as the applicable standard was therein deemed to be 29 CFR § 1926.651(s) n4 rather than 29 CFR § 1926.652(e) as was originally alleged. When the hearing opened on January 10, 1974, respondent, through its attorney, moved that all allegations in the complaint with referece to a violation of § 1926.651(s) should be stricken and objected to the introduction of any evidence in connection with this alleged violation.
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n4 That standard reads:
§ 1926.651 Specific Excavation Requirements.
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(s) When mobile equipment is utilized or allowed adjacent to excavations, substantial stop logs or barricades shall be installed. If possible, the grade should be away from the excavation.
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Judge Donegan reserved making a ruling on this matter until his decision on the merits. In his decision he treated the amendment of the citation in the complaint as a motion to amend, and accordingly granted the motion. He then proceeded to vacate the alleged violations of 29 CFR § 1926.651(c) and (s) finding that the ground cavity in question was a "trench" as that term is defined at 29 CFR § 1926.651(n) and that as the cited standards set forth "specific excavation requirements" they could not be applied to an alleged violation involving a "trench."
In order to understand fully the nature of the problem in this case, it is necessary to examine the relevant standards in their appropriate context. The standards involved are found in Subpart P, Part 1926 of the Code of Federal Regulations. This subpart contains occupational safety and health standards applicable to: "Excavations, trenching, and shoring." It is subdivided into the following subsections:
§ 1926.650 General Protection Requirements.
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§ 1926.651 Specific Excavation Requirements.
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§ 1926.652 Specific Trenching [*5] Requirements.
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§ 1926.653 Definitions Applicable to this Subpart.
The standards in this Subpart distinguish between ground cavities that are "excavations" and those that are "trenches." A discussion of the nature and scope of this distinction is a necessary prerequisite to the resolution of this case.
Section 1926.653(f) defines "excavation" as:
Any manmade cavity or depression in the earth's surface, including its sides, walls, or faces, formed by earth removal and producing unsupported earth conditions by reasons of the excavation. If installed forms or similar structures reduce the depth-to-width relationship, an excavation may become a trench (emphasis added).
Section 1926.653(n) defines "trench" as:
A narrow excavation made below the surface of the ground. In general, the depth is greater than the width, but the width of a trench is not greater than 15 feet (emphasis added).
Reading the two definitions together, the conclusion is inescapable that the term "excavation" is used in the broad sense and as such includes "trenches" within its scope as a specific type of excavation, or a subclass thereof.
Where a particular type of hazard is addressed [*6] by a standard applying to the broad class of "excavations" and no corollary standard addressing such hazard specifically applies to "trenches," the protective provisions of the former will be extended to the latter. See Armor Constr. & Paving Co., No. 10198, BNA 3 OSHC 1204, CCH OSHD para. 19,642 (May 16, 1975) (Cleary, concurring). Indeed, a contrary interpretation would ignore the declared purpose and policy of Congress in passing the Act, i.e., "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions." 29 U.S.C. § 651.
The particular hazard that § 1926.651(s) is designed to eliminate is that of mobile equipment falling into excavations and causing injury not only to workers in and around the excavation, but also to the operators of such equipment. There is no corollary standard specifically applicable to trenches although it is patently clear that the same dangers exist. We therefore hold that § 1926.651(s) is entirely applicable to those excavations otherwise classified as "trenches." The Judge's conclusion to the contrary on this issue is hereby expressly overruled.
Turning to the facts of the present case, [*7] the ground cavity into which the sewer line was being placed was approximately 19 feet wide at the top, 8 feet wide at the bottom, 12-14 1/2 feet deep and over 50 feet long. The Judge concluded that it was a trench as that term is defined in § 1926.653(n) and we agree. n5 Because of our holding that § 1926.651(s) applies to all excavations, whether or not further classified as "trenches," however, the inquiry as to the violation cannot end there. Therefore, we are remanding this case for a disposition on the merits.
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n5 The Judge correctly concluded that for purposes of the 15 foot width restriction in § 1926.653(n), the measurement should be taken at the bottom of the cavity. As I pointed out in Sheesly and Winters Constr. Co., No. 6824, 18 OSAHRC 856, BNA 3 OSHC 1340, CCH OSHD para. 19,756 (June 24, 1975),
It is important to note, however, that the width of a trench is to be measured at the bottom. Measuring the width at the top could lead to the absurd result whereby a properly sloped trench would become an excavation, subject to the requirements of the excavation rather than trenching standards. 18 OSAHRC 856, 859 n.8,
The Secretary had originally argued that the measurement should be made at the top of the cavity, but in its brief before the Commission it is conceded that bottom is the correct place for this measurement.
[*8]
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For the guidance of the parties on remand we note the following: the evidence establishes a prima facie violation of § 1926.651(s); the evidence shows that mobile equipment was operated adjacent to the excavation; n6 that no stop logs or barricades were installed; and that employees in the excavation as well as the operator of the vehicle were exposed to the risk of injury sought to be prevented by this standard.
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n6 The front wheels of the front-end loader came as close as 1 1/2 feet from the edge of the excavation.
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Also, respondent has asserted that compliance with 29 CFR § 1926.651(s) is not possible due to the nature of the work being performed. n7 We point out, however, that the alleged violation involves a front-end loader backfilling the excavation by dumping the fill over the side of the excavation, and does not involve mobile equipment traveling into and out of the excavation for the purpose of placing fill material therein. [*9]
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n7 Commissioner Cleary is of the view that an assertion that compliance is impossible due to the nature of the work being performed is, at most, an affirmative defense. Brennan v. O.S.H.R.C. & Underhill Constr. Co., 513 F.2d 1032 (2d Cir. 1975).
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Accordingly, the Judge's decision vacating the citation for an alleged violation of 29 CFR § 1926.651(s) is hereby reversed. As so modified by this decision, the case is remanded for a disposition on the merits.
It is so ORDERED.
DISSENTBY: MORAN
DISSENT:
MORAN, Commissioner, Dissenting:
In my opinion Judge Donegan properly vacated the citation. It was his decision that the standard for which respondent was cited was inapplicable to respondent's work situation. That well-reasoned decision, which is attached hereto as Appendix A, should be affirmed.
The standards contained in 29 C.F.R. § 1926.651 are entitled "Specific Excavation Requirements," while those in 29 C.F.R. § 1926.652 are entitled "Specific Trenching Requirements." Although my colleagues correctly find that respondent's cavity [*10] was a trench and that "[t]here is no corollary standard specifically applicable to trenches," they nevertheless conclude that respondent was in violation of the excavation standard codified at 29 C.F.R. § 1926.651(s). They justify this finding on the ground that since a trench is a type of excavation, the "conclusion is inescapable" that the Secretary of Labor intended the standards in § 1926.651 to apply not only to excavations but to trenches as well.
Although this "inescapable conclusion" escapes me, I must confess that I was not blessed with the omnipotent gift of knowing exactly what the Secretary intended to say when he did not in fact say it. Fortunately for the Secretary, however, my colleagues have been so blessed, and we now know that when the Secretary uses the term "Specific Excavation Requirements" he really means "Specific Excavation and Trenching Requirements." This is particularly enlightening in view of the fact that there is a separate section dealing with trenching requirements. Although I do not for a moment lack appreciation for my colleagues' gifts, unfortunately I doubt that the employers of this country, who are responsible for complying with a veritable [*11] plethora of standards, possess similar gifts of clairvoyance.
The fact that a trench might be a particular type of excavation does not lend credence to the proposition that the standards are interchangeable. If they were, there would be no need to have two separate subsections at all; in fact, there would be no need to distinguish the two at all. If the Secretary did in fact intend he excavation standards to apply to trenches, the employers of this country are entitled, at the very least, to regulations that make this clear. n8
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n8 As the recently appointed Assistant Secretary of Labor for Occupational Safety and Health told the Senate Labor and Public Welfare Committee on November 11, 1975, "the goals of the Act can be achieved only if a standard is clearly expressed in a manner which is comprehensible to employers and employees, encourages voluntary compliance, and is legally enforceable." (Emphasis added.)
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The standard for which respondent was cited applies by its very wording to excavations. Since respondent's [*12] cavity is conceded by all to be a trench, it was not bound to observe the requirements for excavations. See Secretary v. Salem-Williamette General Contractors, 9 OSAHRC 227 (1974).
Furthermore, it is improper to return this case to the Judge as he has already determined that there was no violation of the standard even if it was applicable to the cavity. Therefore, it is clear that the remand of this case is an attempt by my colleagues to browbeat the Judge into agreeing with their conclusions. This is particularly unfortunate because it could lead to the affirmance of a violation which is entirely different from the one that was enumerated in the citation. n9
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